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Obergefell v. Hodges: Get your bets inFollow

#27 Apr 30 2015 at 12:56 PM Rating: Decent
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I'll take B, and June 19th

My son was almost born on Juneteenth, but Nexa couldn't hold him for a few more days so she had him on Father's Day to save herself the trouble of buying me a gift.
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#28 Apr 30 2015 at 1:02 PM Rating: Decent
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To rule in favor of SSM in this case, he would be countering that position by basically saying that the federal government, this time in the form of a handful of judges, knows better than and has more authority than the states when it comes to marriage.

So, utterly consistent with Loving v Virginia? Sounds right.
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#29 Apr 30 2015 at 2:34 PM Rating: Decent
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Smasharoo wrote:
To rule in favor of SSM in this case, he would be countering that position by basically saying that the federal government, this time in the form of a handful of judges, knows better than and has more authority than the states when it comes to marriage.

So, utterly consistent with Loving v Virginia? Sounds right.


Except that in Loving the state actually made the mere act of cohabiting as "man and wife" illegal and subject to legal penalty. Additionally, the relationship between man and wife is not fundamentally different based on their skin colors, so denying marriage based on that was ruled to be "invidious discrimination". The relationship between two people of the same sex is fundamentally different and changes the structure of marriage and thus is not necessarily invidious discrimination, even if the result is disparate impact based on sexual orientation.

The biggest point is that in order to prove discrimination you have to show that the intent is to discriminate. Yet, as Scalia pointed out, no society in history prior to the Netherlands in 2001 ever legally recognized gay marriage. Yet, despite this, many societies in history did not treat homosexuality negatively. So one cannot conclude that the act of exclusion of same sex couples from legal marriage is due to animus. There's a whole section of exchange that touches on this:

Quote:
MS. BONAUTO: Well, Your ÂÂ Your Honor, the thing about marriage is that it's controlled and regulated by the States. The States create the definition of civil marriage and certainly are accountable for those definitions and any exclusions which follow. And, of course, we all know there were exclusions in cases like Loving and Zablocki and Turner where in each case with prisoners, the people behind on their child support payments, with a mixedÂrace couple who wanted to be able to join this institution, and even though some of those exclusions were quite traditional, they could not ÂÂ
JUSTICE SCALIA: Well, it was ÂÂ not all societies banned mixedÂrace marriages. In fact, not even all States in this country banned. But I don't know of any ÂÂ do you know of any society, prior to the Netherlands in 2001, that permitted sameÂsex marriage?
MS. BONAUTO: As a legal matter, Your Honor?
JUSTICE SCALIA: As a legal matter.
MS. BONAUTO: I ÂÂ I am not. I am not. At ÂÂ it would not.
JUSTICE SCALIA: For millennia, not ÂÂ not a single other society until the Netherlands in 2001, and you're telling me they were all ÂÂ I don't know what.


And, a bit later.



Quote:
JUSTICE SOTOMAYOR: Now, counselor, in ÂÂ in terms of this millennium, what's been the status or the view of gay people in most of those countries? Have they been subject to the kinds of discrimination that they were subject to here? Were they welcomed into the worldwide community? Was it free of discrimination?
MS. BONAUTO: Well, if you're speaking of the world, not every legal system around the world has the kind of system with its explicit constitutional guarantees for all persons of liberty and equality, and that immediately sets the United States off from so many other countries. And of course there are now, I don't know if it's 17 or 18 countries that actually do authorize marriage for sameÂsex couples in Europe, in South America, New Zealand.
JUSTICE ALITO: But there have been cultures that did not frown on homosexuality. That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was ÂÂ it was well accepted within certain bounds. But did they have sameÂsex marriage in ancient Greece?
MS. BONAUTO: Yeah. They don't ÂÂ I don't believe they had anything comparable to what we have, Your Honor. You know, and we're talking about ÂÂ
JUSTICE ALITO: Well, they had marriage, didn't they?
MS. BONAUTO: Yeah, they had ÂÂ yes. They had some sort of marriage.
JUSTICE ALITO: And they had ÂÂ and they had sameÂsex relations, did they not?
MS. BONAUTO: Yes. And they also were able to ÂÂ
JUSTICE ALITO: People like Plato wrote in favor of that, did he not?
MS. BONAUTO: In favor of?
JUSTICE ALITO: SameÂsex ÂÂ wrote approvingly of sameÂsex relationships, did he not?
MS. BONAUTO: I believe so, Your Honor.
JUSTICE ALITO: So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?
MS. BONAUTO: I can't speak to what was happening with the ancient philosophers. What I feel like ÂÂ
JUSTICE KENNEDY: But it's ÂÂ you ÂÂ you said that, well, marriage is different because it's controlled by the government. But from a historical ÂÂfrom anthropological standpoint, Justice Scalia was very careful to talk about societies. Justice Alito talked about cultures. If you read the ÂÂ about the Kalahari people or ÂÂ or ancient peoples, they didn't have a government like this. They made it themselves and it was man and a woman.




At the risk of repeating the test for invidious discrimination, while it's impossible to know for sure, it doesn't look like the justices were buying it in this case, and Kennedy certainly seemed skeptical. It's simply not the same as Loving and no amount of declaring it to be so makes it so. Marriage had long been between men and women, even men and women of different races. Discriminating on that basis was clearly just about discrimination. That's not the case here though.

Edited, Apr 30th 2015 1:38pm by gbaji
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#30 Apr 30 2015 at 3:22 PM Rating: Good
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Since when do you have to not like someone (or group of someones) in order for it to be discriminatory? If I love women, but say they must be paid 50% of a mans wages, does that make it not discrimination? I don't quite understand that line of thinking. "Well, we like them, so it can be discrimination."

And since no one gave gay people marriage rights in history until 2001, that means it's ok, and not discriminatory, to not give them those rights now?
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#31 Apr 30 2015 at 5:25 PM Rating: Excellent
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TirithRR wrote:
Since when do you have to not like someone (or group of someones) in order for it to be discriminatory? If I love women, but say they must be paid 50% of a mans wages, does that make it not discrimination?

My black Facebook friends tell me that it's not discrimination.
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#32 Apr 30 2015 at 5:39 PM Rating: Good
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My black Facebook friends tell me that it's not discrimination.


Sorry, that was me in blackface. That makes it twice as racist.

Maybe three times.
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#33 Apr 30 2015 at 7:00 PM Rating: Decent
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TirithRR wrote:
Since when do you have to not like someone (or group of someones) in order for it to be discriminatory? If I love women, but say they must be paid 50% of a mans wages, does that make it not discrimination? I don't quite understand that line of thinking. "Well, we like them, so it can be discrimination."


That's the wrong question. All laws are discriminatory. Laws against purse snatching discriminate against purse snatchers, right?

The question is whether a given law violates the 14th amendment. Over time, the Supreme Court has devised tests to determine if a law violates that provision. In the case of SSM, the issue is "disparate impact". Meaning a law that applies equally to everyone, but as a result of its application, unequally affects certain groups of people. So a law that only grants marriage licenses to people who marry someone of the opposite sex treats everyone equally (all males can only marry females and all females can only marry males) has a disparate impact on homosexuals, who want to marry someone of the same sex. The law itself doesn't objectively target homosexuals though. A heterosexual male is just as unable to marry a male as a homosexual male is.

The court has ruled many times that disparate impact is not evidence of unconstitutional discrimination. So merely showing that the law affects gay and straight people differently is not proof of unconstitutionality.

Quote:
And since no one gave *** people marriage rights in history until 2001, that means it's ok, and not discriminatory, to not give them those rights now?


No. One of the next tests would be if the law appears to intentionally target a group for negative treatment (the "animus" test). The point of the exchange I quoted was that since many cultures throughout history have been accepting of homosexuality, but none of them allowed gay marriage, that you can't argue that excluding gay couples from marriage is indicative of an "anti-gay" culture. It was in direct response to an argument that was basically saying that denying gays marriage made them effectively second class citizens:

Quote:
If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.


She was making a "dignity" argument and arguing that denying that dignity denies gay couples a right. Which is another test. Even if the law doesn't intentionally negatively impact a group, if the effect is so completely negative, it might outweigh other factors. The counter (which went on for some time btw), was that marriage has never historically been a requirement for acceptance and even "dignity" for a person within a society, regardless of their sexual orientation. So denying them this status doesn't necessarily make them second class citizens or some form of pariah.


Again, I think the key point is that mere discrimination isn't unconstitutional. There are other requirements and tests.

Edited, Apr 30th 2015 6:16pm by gbaji
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#34 Apr 30 2015 at 7:10 PM Rating: Decent
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TirithRR wrote:
Since when do you have to not like someone (or group of someones) in order for it to be discriminatory? If I love women, but say they must be paid 50% of a mans wages, does that make it not discrimination? I don't quite understand that line of thinking. "Well, we like them, so it can be discrimination."


Hmmm... Maybe a better response. This assumes the purpose of the law is to discriminate though. You're correct that if the law actually said "women must only earn 50% as much as men", it would be unconstitutional. But what if the law was that "Doctors earn 100% more than Nurses" (yeah, silly law, but so was your example), and it just happens that more men are doctors than women and more women are nurses than men? This results in disparate impact, clearly seen along sex lines, but the law doesn't specifically mention sex. Assuming no other legal bars to women becoming doctors exist, then this isn't unconstitutional at all (well, it's problematic in that the government shouldn't be mandating pay scales, but that's a separate issue).


In the case of the SSM issue, while many of you may disagree with the rationale for why state marriage licenses might be limited to just couples consisting of one male and one female, in order to rule those laws unconstitutional, the court would have to not just disagree with the rationale, but prove that the rationale simply doesn't exist at all (or can't exist in any state). It's not enough to say that a law *might* be motivated by anti-gay sentiment, but that no law restricting marriage in that way could possibly exist without it being motivated by anti-gay sentiment.

Which, again, is where the exchange I quoted comes in.

Edited, Apr 30th 2015 6:17pm by gbaji
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#35 Apr 30 2015 at 8:37 PM Rating: Good
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gbaji wrote:
TirithRR wrote:
Since when do you have to not like someone (or group of someones) in order for it to be discriminatory? If I love women, but say they must be paid 50% of a mans wages, does that make it not discrimination? I don't quite understand that line of thinking. "Well, we like them, so it can be discrimination."


That's the wrong question. All laws are discriminatory. Laws against purse snatching discriminate against purse snatchers, right?
No no no no NO!!


NO!!

You do not get to pretend a word has meaning you decided it means and force it on everyone else. Why?

1. You are not Alma.
2. You obfuscate in enough ways already.
3. It was settled on here long ago that the definition of "discrimination" in virtually all contexts in the Asylum is most decidedly the negative, hateful one.
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#36 May 01 2015 at 2:37 AM Rating: Decent
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The question is whether a given law violates the 14th amendment.

The answer is that it clearly violates the equal protection portion, unequivocally, unless you treat gender as it applies to marriage as magic. It's no different from a law banning women from buying oranges, and the argument being "well, oranges. For millennia, only men could buy them..so...culture...you know."

Edited, May 1st 2015 4:39am by Smasharoo
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#37 May 01 2015 at 7:04 AM Rating: Excellent
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But marriage hasn't changed in millennia! Everyone knows that.
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#38 May 01 2015 at 8:23 AM Rating: Good
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It's fun realizing that modern conservatives are basically political Amish. Pick a time that best agrees with their ideals and pretend everything before it never happened and everything after shouldn't.
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#39 May 01 2015 at 3:24 PM Rating: Decent
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Friar Bijou wrote:
gbaji wrote:
TirithRR wrote:
Since when do you have to not like someone (or group of someones) in order for it to be discriminatory?


That's the wrong question. All laws are discriminatory. Laws against purse snatching discriminate against purse snatchers, right?


3. It was settled on here long ago that the definition of "discrimination" in virtually all contexts in the Asylum is most decidedly the negative, hateful one.


Correct. Which is why showing that the motivation behind something is "hateful and negative" is relevant. If we all agree that's what is meant by "discriminatory", then Tirith's question is automatically answered. Clearly, he was playing with a different usage of the term, which is why I responded the way I did.

Edited, May 1st 2015 2:30pm by gbaji
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#40 May 01 2015 at 3:41 PM Rating: Default
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Smasharoo wrote:
The question is whether a given law violates the 14th amendment.

The answer is that it clearly violates the equal protection portion, unequivocally, unless you treat gender as it applies to marriage as magic.


If you think procreation is "magic", then I guess that's how you might view things. Let's see. When a man and a woman love each other very much...

Quote:
It's no different from a law banning women from buying oranges...


No. It's no different than denying public funding to women's sports teams for jock straps. That's also discrimination, right?

Quote:
...and the argument being "well, oranges. For millennia, only men could buy them..so...culture...you know."


The argument being "well, no penises", so no need for a jock strap. For millennia, only men have had a need for jock straps, and that's still true today.


Do you see how once you stop sticking your head in the sand about the very real social impact differences between same sex versus opposite sex relationships, your imagined unfair discrimination "magically" disappears? When men and woman have sex together, pregnancies occur. Marriage exists as a means to deal with that effect. Couples consisting of two people of the same sex do not produce the same problem, thus there is no need to apply the marriage institution to them. They're free to enter into it, just as a woman is free to wear a jock strap if she really wants to. But the need to do so just doesn't exist, so the need for the rest of us to provide benefits/incentives for them to get married also does not exist.
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#41 May 01 2015 at 3:48 PM Rating: Good
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gbaji wrote:
Marriage exists as a means to deal with that effect.
Wrong.
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#42 May 01 2015 at 4:16 PM Rating: Decent
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lolgaxe wrote:
gbaji wrote:
Marriage exists as a means to deal with that effect.
Wrong.


Then why are siblings barred from marriage? In the absence of procreative presumption, there would be no reason to restrict it in such a way. Note, that it's not just avoidance of negative procreative results, since same sex siblings are not allowed to marry either. The assumption is that there are two people who we want to or expect to procreate, and we'd like them to do so within the context of a formally defined relationship. We call this relationship "marriage".


Why do you think marriage exists then? It's just amusing to me that when I say this a whole ton of people insist I'm wrong, but then they can't come up with an alternative purpose of marriage that fits the historical pattern of marriage *and* which also fits their proposed modifications to the institution (while presumably also retaining limits against polygamy and incest). It just seems like a heck of a lot of effort to find the most convoluted and nonsensical way of looking at something just so you can ignore the most obvious explanation because it doesn't allow for something you want.
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#43 May 01 2015 at 4:22 PM Rating: Good
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gbaji wrote:
they can't come up with
Wrong.
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#45 May 01 2015 at 4:33 PM Rating: Excellent
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gbaji wrote:
It's just amusing to me that when I say this a whole ton of people insist I'm wrong, but then they can't come up with an alternative purpose of marriage that fits the historical pattern of marriage *and* which also fits their proposed modifications to the institution (while presumably also retaining limits against polygamy and incest).

It's amusing to me that you can spend a decade pretending that no one has answered this. Well, more "tiresome" than amusing but I suppose I can smirk for old time's sake.
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#46 May 01 2015 at 5:10 PM Rating: Decent
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Ran across an interesting paper on the topic. I think that it does a pretty good job of explaining the position I hold and why marriage is what it is and not what some want to change it into. I'd recommend reading it. At the very least, it might help provide answers to the more common questions that always seem to be tossed out there.
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#47 May 01 2015 at 5:11 PM Rating: Decent
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Jophiel wrote:
gbaji wrote:
It's just amusing to me that when I say this a whole ton of people insist I'm wrong, but then they can't come up with an alternative purpose of marriage that fits the historical pattern of marriage *and* which also fits their proposed modifications to the institution (while presumably also retaining limits against polygamy and incest).

It's amusing to me that you can spend a decade pretending that no one has answered this. Well, more "tiresome" than amusing but I suppose I can smirk for old time's sake.


It's amusing to me that the answers given for a decade have pretty consistently been exactly the one you just gave.
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#48 May 01 2015 at 5:12 PM Rating: Decent
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lolgaxe wrote:
gbaji wrote:
they can't come up with
Wrong.


Then write up a response. Don't just tell me that one exists, or that it's already been given. I hear that every single time I ask for this. What I don't get? An actual answer that contains the information I'm asking for.
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#49 May 01 2015 at 5:25 PM Rating: Excellent
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Remind me again why we don't end marriages of people who don't end up procreating?
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#50 May 01 2015 at 5:29 PM Rating: Good
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gbaji wrote:
Then write up a response.
I did. "Wrong."
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#51 May 01 2015 at 5:30 PM Rating: Decent
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Uglysasquatch wrote:
Remind me again why we don't end marriages of people who don't end up procreating?


Read the paper I linked. There's an entire section that addresses this question.
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